Environmental Science

LESSON 42. DRAWBACKS IN ENVIRONMENTAL LEGISLATION AND DIFFICULTIES IN ITS ENFORCEMENT

Three issues/things that are especially important for environmental legislation are:

1. The precautionary principle This principle has evolved to deal with risks and uncertainties faced by environmental management. The principle implies that an ounce of prevention is worth a pound of cure— it does not prevent problems but may reduce their occurrence and helps ensure contingency plans are made. The application of this principle requires either cautious progress until a development can be judged ‘innocent’, or avoiding development until research indicates exactly what the risks are, and then proceeding to minimize them. Once a threat is identified, action should be taken to prevent or control damage even if there is uncertainly about whether the threat is real. Some environmental problems become impossible or costly to solve if there is delay, therefore waiting for research and legal proof is not costless.

2. The polluter-pays principle In addition to-the obvious—the polluter pays for the damaged caused by a development—this principle also implies that a polluter pays for monitoring and policing. A problem with this approach is that fines may bankrupt small businesses, yet be low enough for a large company to write them off as an occasional overhead, which does little for pollution control. There is, thus, debate as to whether the principle should be retrospective. If the polluter pays, how long back does liability stretch? Developing nations are seeking to have developed countries pay more for carbon dioxide and other emissions controls, arguing that they polluted the global environment during the Industrial Revolution, yet enjoy the fruits of invention from the era. This principle, in fact, is more a way of allocating costs to the polluter than a legal principle. This principle was adopted by OECD member countries in 1972, at least in theory.

3. Freedom of information: Environmental planning and management is hindered if the public, NGOs or even official bodies are unable to get information. Many countries have now begun to release more information—the USA has a Freedom of Information Act, and the European Union is moving in this direction. But still many governors and multinational corporations fear that industrial secrets will leak to competitors if there is too much disclosure, and there are situations where authorities declare strategic’ needs and suspend disclosure.

Drawbacks in Environmental Legislation

Legislation is often not perfect and there are various drawbacks in the Acts enacted in relation to environment. The points are illustrated by some examples.

Forests constitute a vital resource of the nation. It is a scientifically established fact that the forest cover should be at least 1/3 of the land area for a healthy state of environment. Vegetation generates oxygen. Trees hold the soil together, and in India the forests provide livelihood to millions of tribals and villagers living in and around forests. Experts and the mass media have brought to the attention of decision makers and the public at large, the fact that the forest cover of the country has been rapidly shrinking. some estimates put the present coverage at not more than 12% of the land area. Fuel starved villagers, greedy forest contractors and corrupt officials are the proven culprits.

Some time back, the Government came up with a well-meaning but potentially draconian Forest bill. There was virtually an uproar against the Bill-principally on two grounds. One, that the Bill would make criminals of all tribals living in and off the forests, because it prohibited the taking of all the produce, including leaves and fruits from the forests. Two, the proposed Bill converted forest officers into judges and executioners at the same time. The bill failed to attract public support because it adopted an oppressive colonial model of law.

The aborted Forest Bill and the raging controversies over the present and proposed conservation zones, which strike at the root of the right of the villagers to graze their cattle, demonstrate that the central concern of all law-making should be man. Laws aimed at protecting the trees, animals and birds cannot in the process treat people as marginal. the new National Forest Policy resolution adopted by the Parliament on 7 December, 1988 strives to make amends; it is too early to judge its impact and effectiveness.

It may be mentioned here that the Directive Principles of State Policy obligate the state to its people certain basic social and economic rights which were described by Justice Krishna Iyer as follows:

 "The developmental directives of our constitution are geared to social and economic justice".

 Again, the problems of individual-or-group inspired environmental litigation are different. The Water and Air Pollution Acts do not permit individuals and groups direct access to courts. The Central and State Boards are to act as conduits of  public grievances. In other words, individuals have no locus standi under the said Acts, To a certain degree, this lamentable lacunae have been plugged by the latest environment Protection Act. The number of suits admitted by the higher courts by way of the public interest litigation procedure has made the rigid position of the Acts, denying locus standi to individuals, untenable.

 How successful has been this category of environment litigation? Some, like the Silent Valley, the Doon Valley, the Delhi gas leakage cases, etc. have attracted media and public attention. But the same case have also thrown up intractable issues of standing burden of proof, expert testimony and the very competence of the ordinary courts to handle environmental disputes. The rules of environmental disputes. The rules of evidence courts to handle environmental disputes. the rules of evidence relating to burden of proof, particularly, have created an unconscionable situation. An individual or even a committed group of individuals cannot be expected to submit authoritative proof of objectionable radiation level, for instance. The inequality of the resources available to the individual and the establishment make a mockery of the rules of evidence in environmental disputes.

Difficulties in Enforcement of Environmental Legislation

Despite all this legislative activity the state of the environment in India continues to be gloomy. the rivers and the lakes continues to be choked with sewage and industrial waste. the air quality in some major cities has gained the dubious distinction of being worse than that of the American cities like Chicago and New York. Forests continue to disappear, and the consequent loss of soil has led to the scourge of floods with sickening regularity. What can the country do to reverse the process and restore a balances state of the environment?

 Although the legislative measures taken and the administrative set-up is sufficiently indicative of the Government's concern, the implementation does not reflect a sound appreciation of the issues involved in eco-management and development. The enforcing agencies find it increasingly difficult to enforce the regulatory standards on the industries and other polluters. The major problems faced by the enforcing agencies are:

• Less than required regulatory / enforcing manpower in regulatory agencies compared to the ever-increasing number of industries.

• Lack of adequate technical knowledge / skills required for enforcement of regulations.

• Resistance to change / attitudinal problems prevalent

• Lack of financial resources in general

Environment is a resource-perhaps the most precious of all the Earth's resources. It should be treated as such. the measures adopted by the Government until now do not reveal an equal emphasis on the management and development aspects of this vital resource. Often these measures reflect a fire-bridge approach-rushing to the spot of fire, after it breaks out. The strategy should lay equal emphasis on attacking the cause of fires. An ounce of prevention in the field of environment is literally worth a gallon of cure.

 Take for example the river pollution in India. It is well known that the major source of pollution of rivers is domestic sewage which municipalities nonchalantly dump in the nearest rivers. Ninety per cent of the pollution of Ganga stems from the 100-odd littoral municipal waste dumpings. The colossal cleaning-up operation, Ganga action Plan, will be an exercise in futility if it is not accompanied by a massive effort to prevent the municipalities form dumping their wastes in the river. Everyone knows knows that the technology for treating municipal wastes exists. But it costs money and most of the municipalities cannot afford it.

 If the new Environment (Protection) Act is taken seriously, all the municipalities abutting the Ganga will have to be prosecuted. The Act, right, makes no distinction between private and public pollution. But that would be taking a very restrictive view of the law. The more modern view is that the law must guide and help people and establish a trend of acceptance. Environmental law has little change of acquiring effectiveness unless accompanied by a whole set of promotional measures, ranging from direct financial subsidies to cost sharing, for example, in installing treatment plants.

 Litigation is an expensive affair. Environmental litigation is more expensive than other types of dispute, since it involves expert testimony, technical evidence and so on. State boards will have to be able to afford the expertise and the administrative backing. Most of the state boards suffer from inadequate expertise and funds to pursue their objectives. There is, therefore, a tendency to seek to exercise gentle pressure on the polluting industry and pursue settlement outside the courts.

 There is nothing fundamentally wrong with out-of court settlement of environmental disputes . In fact, in some developed countries , like the united states, a preference is shown toward such a procedure. But in India,  officially initiated and sanctioned out of court settlements may aggravate the perennial problem of corruption. Sharing the cost of court settlements may aggravate the perennial problem of corruption. Sharing the costs of anti-pollution measures taken by the industry seems to be a better strategy than state- sponsored expensive and lengthy prosecutions.

 There is nothing fundamentally wrong with out-of -court settlement of environmental disputes.  In fact, in some developed countries, like Untied states, a preference is shown towards such a procedure. But in India officially initiated and sanctioned out of court settlement may aggravate the perennial problem of corruption. Sharing the cost of anti-pollution measures taken by the industry seems to be a better strategy than state- sponsored expensive and lengthy prosecutions.

 Admittedly, the state of environment of the country is not rosy; the imperatives of development have sometimes come into sharp conflict with those of the environment; the administrative machinery set up to solve the problems of environment has often failed in its task; the laws enacted to meet the challenge have been generally inept. But these are the fallings of a nation wrestling with hundreds of problem on thousands of fronts. The war of survival which is what the sorry state of the nation`s environment poses to the country acquires first and foremost the will to survive . The Government and, more importantly, the  people have demonstrated  it in abundance. The rest is matter of skill and experience, which we seem to be acquiring slowly but steadily.

PUBLIC AWARENESS

Environmental sensitivity in our country can only grow through a major public awareness campaign. This has several tools-the electronic media, the press, school and college education, adult education, which are all essentially complementary to each other. Green movements can grow out of small local initiatives to become major players in advocating environmental protection to the Government. Policy makers will only work towards environmental preservation if there is a sufficiently large bank of voters that insist on protecting the environment. Orienting the media to project pro-environmental issues is an important aspect. Several advertising campaigns frequently have messages that are negative to environmental preservation.

Using an environmental calendar of activities for creating public awareness:

There are several days of special environmental significant, which can be celebrated in the community and can be used for creating environmental awareness. 

Feb 2nd: World Wetland Day is celebrated to create awareness about wetland and their value to mankind.

March 21st: World Forest Day can be used to initiate a public awareness campaign about the extremely rapid disappreance on forests.

March 22nd: World Water Day 

April 7th : World Health Day (WHO) come into existence on this day in 1948

April 18th : World Heritage Day; to arrange a visit to a local museum

April 22nd: Earth Day; to draw attention to increasing environmental problems caused by mans on earth

June 5th : World Environment Day

June 11th: World Population Day

Aug 6th : Hiroshima Day

Sept 16t h: World Ozone Day

Sept 28th : Green Consumer Day

October 16th: World Food Day